PARTLY DISSENTING OPINION OF JUDGE ZUPANČIČ

I regret that I am unable to join the majority in this case as far as it concerns the inadmissibility of the complaint under Article 8 of the Convention.

The applicant complains that the Romanian authorities failed to take adequate steps to enforce the judgment which had given him the right to have access to his son for a total of 82 days per year. He also complains that the Romanian authorities allowed the mother to take the child out of the country and failed to assist him in the proceedings before the English courts.

My first hesitation in this case stemmed from my belief that it ought not to have been finally decided before it had bec o me clear whether another case, which was being examined by the Third Section , would or would not be accepted for a referral to the Grand Chamber. I am referring to Maumousseau and Washington v. France , a case in which the pattern of events is to some extent a mirror image of the situation in this particular case. In Maumousseau and Washington the mother stayed in France and the father returned to the United States . Eventually, after a radical departure from the jurisprudence of the Cour de cassation , the child – who ha d never spent any meaningful time with the father – was snatched from the hands of the mother, put on an a ero plane and sent back to New York . The passage of time, which was the central issue in that case, made it unreasonable – according to the Hague Convention criteria – to have proceeded under those conditions to re - establish the relation ship with the father in New York . The position I took in that case relied principally on the fait accompli logic, not uncommon in such cases, that is, the sheer passage of time in conjunction with the fact that the child in question was deprived to such a degree of her mother ’ s maternal love and care. I continue to see th e eventual snatching as an incredibly sad and shocking turn of events.

If Maumousseau and Washington is to be reconsidered by the Grand Chamber, which we do not know at this particular point in time, then certain very basic logic of the Hague Convention would have to be interpreted in the light of our own Article 8 and certain criteria guiding decisions in similar cases would be confirmed or newly established. In my opinion, it would be wise to wait and see whether such criteria is or is not forthcoming.

It is inconceivable, in my humble opinion, not to regard the pattern of events in this particular case through precisely the same lenses . At bottom, the situation is very simple, namely, the mother here effectively kidnapped the boy and, un beknown to the father and the authorities, moved the child to a faraway country. In Maumousseau and Washington the omission of the mother was considered by the American courts to have been a kidnapping,

whereas here perfectly analogous behaviour , except that the mother actively kidnapped the boy , has not been considered as anything illegal. How can that be?

If the father in this particular case were to pursue the same legal internal and international remedies, then the mother ’ s behaviour would end up in the same legal slot as the behaviour of the mother in Maumousseau and Washington . T he father has not , however, pursued those or other legal remedies and therefore the actual kidnapping of the child ha s never fallen under that legal definition. The case has ended here in this Court, reduced to a series of technicalities concerning unreasonable delays allegedly committed by the Romanian and English courts.

On another level , an analysis of Article 3 of the Hague Convention on the C ivil A spects of I nternational C hild A bduction reveals that the removal of the child is to be considered wrongful if it is in breach of rights of custody, here of the father , under the law of the S tate in which the child was habitually resident immediately before the removal , and under the additional condition that those rights were actually exercised, here by both the father and mother. Technically, t he application of the Hague Convention therefore depends on the application of Romanian law in the matter. A separate question therefore arises as to whether the idea of litigating this issue before the Romanian courts does not in fact conflict with the primordial imperative of the Hague Convention. This imperative , as we emphasized in our dissent in Maumousseau and Washington , is time. In other words, if the application of domestic law were to be litigated with unreasonable delay in each of these cases then the fait accompli logic referred to above would always produce an undesired effect. This is precisely what happened in Maumousseau and Washington , which is why it became unreasonable to snatch the child from the hands of the mother and put it on an aero plane back to New York .

Nevertheless, there is one significant difference concerning the pattern of events in question. In Maumousseau and Washington the litigation was parallel in both countries but prove d to be more effective in the United States than in France . In this particular case the litigation before the Romanian courts was completely ineffective , hence the unfortunate consequences which this Court has now confirmed. If the father in this case had pursued the same remedies as Mr Washington in his case, the mother ’ s action would perhaps have been regarded as a kidnapping. However, the case got bogged down in the Romanian courts and the international action never materialised. If, on the other hand, the American courts in Du chess County in the State of New York had bothered to undertake a complex analysis of the French law, before the departure from precedent by the Cour de cassation , Mr Washington would never have succeeded with his case.

But these are technicalities. The role of the European Court of Human Right has certainly not been foreseen as one in which the unfortunate formula condemning legal formalism – summum jus, summa in j u ria! – would prevail. The subsidiary function of the international court is precisely to cut through such Gordian knots of legal technicalities and se e the reality with a great do se of common sense and awareness of justice.

Here we have a father who has effectively been deprived of his child whereas in Maumousseau and Washington we had a child who had effectively been deprived of her mother. There is no disputing the fact that the clandestine removal of the child in this case was wrongful because there is now no getting round the fact that the distance between Bucharest and the United Kingdom , given the financial requirements involved, has deprived the father of his right to see his son for a total of 82 days per year. No amount of legal fireworks can conceal that simple fact, just as in Maumousseau and Washington nothing could conceal the fact that the child had been snatched from the hands of her mother who ha d cared for her all her life.

The legitimacy and moral impact of the judgments of this Court depend on this direct contact with reality. We should not be seduced into legal formalism.